If you’re a family law practitioner, you’ve probably encountered several situations where you’ve had to evaluate and balance the need for information with the need for compassion. If you’re a domestic violence law practitioner, you probably do this every day. And if so, maybe your internal dialogue about the process of collecting information from your clients looks like some variation of the following:

  • “Do I really need to know this? This might come up in court.”
  • “How do I ask this question without being offensive? Maybe the client won’t be offended; they shouldn’t be offended—I need to know this.”
  • “What if this question is invasive and doesn’t come up in court? That could happen.”

The dialogues are many, and you certainly can’t account for every unknown. But we might learn something from looking at a common inquiry that routinely comes up in Domestic Violence Prevention Act (DVPA) cases and potentially requires some care when asked: whether a domestic violence survivor made a police report following an incident of abuse.

Factually, we know that:

  • For nonfatal domestic violence victimizations occurring from 2006 to 2015 in the United States, only 56% were reported to police.
  • There are several reasons a domestic violence survivor might not make a police report, including fear of partner reprisal, the desire for personal privacy, language barriers, or the desire to protect their partner or children, among others.
  • Female victimizations are four times as likely as male victimizations to go unreported because of fear of partner reprisal.
  • While all other homicides in California are decreasing, domestic violence homicides saw an increase of 13% from 2009 to 2011.

Additionally, Assembly Bill 118 (signed into California law on Oct. 8, 2021) — which directs funding to pilot programs that develop and provide community-based alternative responses to law enforcement — declares that specific, underserved communities “face significant barriers to engaging with law enforcement” and that “emergency issues surrounding crises in . . . intimate partner violence . . . can, at times, be addressed more safely, with greater impact, and more cost effectively and efficiently by community-based organizations.” (Assembly Bill 118 (Stats. 2021, ch. 694).)

So, given this information, and the high likelihood of a client not making a police report, what can we as practitioners do to ensure that our clients don’t feel shamed or judged when we ask whether they made a police report for a particular incident — and if not, why not?

First, we acknowledge the courage it takes to share a detailed incident of abuse:

  • e.g., “Thank you for sharing the details of that incident. I’m so sorry that happened to you.”

Second, we make the ask while preemptively normalizing whatever response the client will give and, if helpful, explain why we’re requesting this information:

  • e.g., “I’d like to ask whether you made a police report for this incident. It’s OK if you did, and it’s also OK if you didn’t; I just need to know if there is additional information I need to consider for your case.”
  • e.g., “Sometimes, survivors will report these incidents to law enforcement, but certainly not always. Can you please tell me if you made a police report for the incident on {DATE}?”

Third, we follow up and adjust our language and tone accordingly:

  • e.g., “There are several reasons why survivors of abuse don’t make police reports, and they’re all valid. Can you please share your reason for not making a police report?”

Lastly, if it’s helpful during follow-up to explain why this information is needed, do that:

  • e.g., “Unfortunately, this information is important because it will likely be raised by the other party at the hearing to try and undermine the extent or truthfulness of the incident, so it’s important for us to be prepared (or get ahead of it).”

The takeaway from the above example is that questions like these are often associated with judgment, irrespective of how innocuous we might perceive them to be. And if we’re not mindful of how we ask these types of questions, we risk even greater aspects of the case, including our client’s trust, the rapport we’ve worked hard to establish with them, and their willingness to be absolutely forthcoming with us. So before you sit down to take a declaration or gather information, review your questions for potential pitfalls or areas requiring extra care, and remember that a brief lapse in compassionate communication with your client can cost you a lot more than the thrill of collecting “good” facts.

For further discussion of domestic violence actions, see CEB’s Practice Under the California Family Code: Dissolution, Legal Separation, Nullity, chapter 11.

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